Graham v. Connor is an excessive force case arising from the detention
and release of a suspicious person by City of Charlotte ocer M.S.
Connor.
On November 12, 1984, diabetic Dethorne Graham asked his friend to
drive him to a convenience store so he could purchase some orange
juice as he believed he was about to have an insulin reaction. Facing a
long line upon entering the store, Graham quickly exited, got back into
his friend’s car and asked him to drive to a friend’s house.
Graham’s short stay and rapid exit attracted the attention of City of
Charlotte (N.C.) police ocer M.S. Connor who stopped the car. He
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Topics  Ocer-Involved Shootings
Lance J. LoRusso
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Graham v. Connor is an excessive force case arising
from the detention and release of a suspicious
person by City of Charlotte ocer M.S. Connor.
(Photo/PoliceOne)
detained Graham and the driver until he could establish that nothing
untoward occurred at the convenience store.
During the stop, Graham exited his friend’s car, ran around it and passed
out. He was handcued and placed onto Connor’s hood. At that point, he came to and pleaded with the ocers to get
him some sugar. Graham’s friend came to the scene with orange juice, but the ocers refused to allow Graham
access.
The ocers put Graham into a patrol car but released him after an ocer conrmed the convenience store was
secure.
During the encounter, ocers reportedly made comments indicating they believed Graham was drunk and cursed at
him. Graham reportedly suered multiple injuries and sued the city and several ocers, including Connor, for violating
his constitutional rights.
After the federal trial court granted a directed verdict [2] dismissing all defendants, plainti Dethorne Graham
appealed to the Federal Fourth Circuit Court of Appeals, which upheld the dismissal. The United States Supreme Court
reversed and remanded the case back to the Fourth Circuit for reconsideration of the case under a new standard for
interpreting law enforcement use of force that would change the legal landscape.
A STANDARD TO ANALYZE POLICE USE OF FORCE
The Graham court focused on “unreasonable seizures” and decided all LE use of force must be examined under the
Fourth Amendment not the Eighth Amendment, as the latter required some inquiry into the subjective beliefs of the
LEO.
The Fourth Amendment provides, in relevant part: “The right of the people to be secure in their persons, houses,
papers, and eects, against unreasonable searches and seizures, shall not be violated.” This was consistent with the
Court’s holding three years prior in Tennessee v. Garner, which relied primarily on the Fourth Amendment to review a
LEO’s use of force on a eeing suspect.
The Court set out a simple standard for courts to analyze law enforcement use of force. The desired standard would be
objective as the Eighth Amendment “cruel and unusual punishment” prohibition necessitated too much focus on the
subjective beliefs and intentions of the involved LEOs, which may or may not have had any eect on the outcome of
the encounter: [3]
“As in other Fourth Amendment contexts, however, the ‘reasonableness’ inquiry in an excessive force case is an
objective one: the question is whether the ocers’ actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them, without regard to their underlying intent or motivation…An ocer’s evil
intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an
ocer’s good intentions make an objectively unreasonable use of force constitutional.”
The principle is rather straightforward and generally not controversial. However, the remaining analysis sparked a re
of controversy that continues today.
First, the Court held that the actions of a LEO must be judged from the perspective of a reasonable LEO and not a
responsible person. This is signicant as most criminal and civil standards incorporate and rely upon a reasonable
person or “reasonable man” standard as the law once described it.
Law enforcement critics found the seeds for their discontent in Justice Rehnquist’s rationale for this standard:
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“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable ocer on
the scene, and its calculus must embody an allowance for the fact that police ocers are often forced to make
split-second decisions about the amount of force necessary in a particular situation.”
Justice Rehnquist elaborated on the need to perform an objective analysis of the LEO’s actions that poured accelerant
on the ames of controversy. Relying upon Terry v. Ohio, the Court stated:
“Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory
stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to eect it.”
Recognizing this would necessitate a fact-based inquiry, the Court provided this instruction:
“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable ocer on
the scene, rather than with the 20/20 vision of hindsight.”
Finally, the Court unequivocally advised all courts reviewing a LEO’s use of force to consider the imperfect and
uncontrolled reality of the environment in which LEOs use force:
“The calculus of reasonableness must embody allowance for the fact that police ocers are often forced to
make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the
amount of force that is necessary in a particular situation.”
The Graham court retained one key rationale from the now overruled Johnson v. Glick case stating:
“With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: ‘Not
every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,’ Johnson v. Glick,
481 F.2d, at 1033, violates the Fourth Amendment.”
Graham has long been criticized as dismissing the rights of the subject of LE action. I believe the “reasonable LEO”
standard is a thorn in the side of most LE critics who look at videos and apply an untrained, ill-informed analysis to
advocate for sanctions against the LEO. Recent critics of Graham have argued that the Supreme Court’s rationale and
guidance from this civil case cannot be applied to a criminal analysis of a LEO’s use of force. For those critics, I have a
question: How can a reasonable use of force under the Fourth Amendment to the United States Constitution violate a
state criminal statute? I have yet to hear a coherent or rational answer.
Graham v. Connor considers the interests of three key stakeholders – the law-abiding public who has a right to move
about unrestricted, the government that has a right to enforce its laws, and the LEO who has an obligation to enforce
the law and the right to do so without suering injury. LEOs should know and embrace Graham. Time and again, the
United States Supreme Court has demonstrated a clear recognition of the dangers inherent in the LEO’s duties, as well
as their role in a peaceful society.
Critics may scream louder than our supporters. Recent eorts in California and other states to change the analysis of a
LEO’s use of force to apply a hindsight analysis are prime examples. However, the solid bedrock of Graham v. Connor
provides a strong foundation for LEOs doing the work few in society are willing to do.
REFERENCES
1. A law review article is a scholarly piece typically authored by law professors and law students intended to intensely
examine a particularly important decision, area of law, or legal trend.
2. A directed verdict dismisses the case after the Plainti’s presentation of evidence.
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3. This was essential to the previous test set forth in Johnson v. Glick, 481 F.2d 1028 (2 Cir. 1973).
About the author
Lance J. LoRusso, a former law enforcement ocer turned attorney, has been a use of force instructor for nearly 30 years and has represented over 100
ocers following ocer-involved shootings and in-custody deaths. Lance also handles media response, catastrophic personal injury, tractor-trailer wrecks,
and wrongful death cases. He is the author of “When Cops Kill: The Aftermath of a Critical Incident” and other books focused upon law enforcement and media
relations. He is licensed to practice law in Georgia, Arkansas and Tennessee. Learn more about Lance’s practice at www.lorussolawrm.com.
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